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Commonwealth of Northern Mariana Islands v. Lizama

filed*fn*: June 22, 1994.

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, PLAINTIFF-APPELLEE,
v.
ISIDRO R. LIZAMA, DEFENDANT-APPELLANT.



Appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands. D.C. No. CR-91-00106. Dela Cruz, Chief Justice, Villagomez and Borja, Justices, Presiding.

Before: Jerome Farris, Robert R. Beezer, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Rymer.

Author: Rymer

RYMER, Circuit Judge:

This appeal turns on the construction and interpretation of local law by the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI). We must decide whether the CNMI Supreme Court violated Isidro Lizama's due process rights by upholding Regulation 8301, a CNMI Revenue and Taxation Regulation giving customs officials the authority to conduct airport searches.*fn1 Our review is limited to determining whether the CNMI Supreme Court's ruling was arbitrary, discriminatory, "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation." Ferreira v. Borja, 1 F.3d 960, 962 (9th Cir. 1993) (quotation marks omitted). We have jurisdiction, 48 U.S.C. § 1694c (a), and we affirm.

I

On June 15, 1991, Lizama arrived at the Saipan airport on a direct flight from the Philippines, carrying a statue that appeared to be freshly painted. A customs officer, later joined by another, ran the statue through an airline's baggage x-ray machine, drilled several holes in the statue, and eventually cut through the statue's base and pried it open with a crowbar. The two officers discovered three bags of crystal methamphetamine inside the statue. Lizama was arrested and charged with importing and trafficking in methamphetamine in violation of 6 CMC § 2301(a), and possession of a controlled substance, id. § 2141(a)(1).

Lizama moved in the superior court to suppress the drugs found in the statue. Because another CNMI court had previously determined that warrantless searches by customs officers at the borders of any of the Northern Mariana Islands were reasonable under Article I, § 3 of the Commonwealth Constitution (which tracks the Fourth Amendment of the United States Constitution), Lizama took the tack that Regulation 8301, authorizing customs officers to inspect baggage, parcels, cargo, and passengers arriving in the Commonwealth, was invalid because it was not promulgated in accordance with applicable local law.

The Administrative Procedure Act of the Trust Territory of the Pacific Islands (TT APA), which sets forth the procedural steps necessary to promulgate and adopt a rule or regulation, took effect on July 1, 1974. At that time, the Northern Mariana Islands were part of the Trust Territory. In 1978, the Northern Marianas became a self-governing commonwealth in political union with the United States. See generally Commonwealth v. Atalig, 723 F.2d 682, 684-85 (9th Cir.), cert. denied, 467 U.S. 1244, 82 L. Ed. 2d 826, 104 S. Ct. 3518 (1984). The TT APA (along with other provisions of the TT Code) remained "in force and effect" in the CNMI "until and unless altered by" its government. Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America § 505, Pub. L. No. 94-241, 90 Stat. 263 (1976), reprinted in 48 U.S.C. § 1681 note (1988).

The CNMI Department of Finance initially promulgated Regulation 8301 as an "emergency regulation" pursuant to TT APA § 4(2).*fn2 After notice and comment, the Regulation was formally adopted on March 31, 1983, filed with the CNMI Corporate Registrar, and published in the Commonwealth Register; the Regulation was not filed with the Governor or the Trust Territory District Administrators, and it was not published in the Territorial Register.

When Regulation 8301 was adopted, the TT APA was still in effect. The Commonwealth Code (CMC), including its Administrative Procedure Act (CMC APA), became effective on January 1, 1984. Regulation 8301 was not republished in the Commonwealth Register nor was it thereafter filed with the Governor and Corporate Registrar.

The superior court agreed with Lizama that Regulation 8301 was void because it had not been filed with the "district administrator" of each district in the Trust Territory as required by § 5(1) of the TT APA, or with the CNMI Governor as required by § 9105(a) of the CMC APA,*fn3 and because it was not refiled and republished pursuant to the requirements of § 9102(d) of the CMC APA, which provided that existing regulations had to be refiled and republished within 10 days of January 1, 1984 to remain in effect.*fn4 Without Regulation 8301, the superior court found that the customs officers lacked authority to conduct a warrantless search of the statue, Lizama's baggage, or his person. The court therefore held that the search was illegal and suppressed all evidence obtained as a result of the search.*fn5

The CNMI Supreme Court reversed, holding that Regulation 8301 had been validly promulgated pursuant to the TT APA, and that it remained valid after enactment of the CMC. Because the Regulation was an existing law at the time the CMC was adopted, the court held that the refiling and republishing requirements of § 9102(d) were inapplicable. Commonwealth v. Lizama, No. 91-035, 1992 WL 515985 (N. Mar. I. Dec. 29, 1992).

Lizama filed this timely appeal, raising several arguments under the Due Process Clause.*fn6 He contends that the court's decision was arbitrary, departed from past interpretations of requirements that governed the transition from Trust Territory to Commonwealth, and ...


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